PHILADELPHIA – The proprietor of an adult store in Upper Merion Township is seeking to have a declaratory judgment issued that the township’s zoning codes and ordinances are unconstitutional, and thus, violated the plaintiff’s rights under the First and Fourteenth Amendments to the U.S. Constitution.
ES IV, LLC filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 10 versus Upper Merion Township Board of Supervisors and Upper Merion Township Code Enforcement Department. All parties are of King of Prussia.
“In 2019, plaintiff desired to open a general retail store located within the Township at 143 South Gulph Road which would offer patrons general merchandise, such as smoke-related products and novelty t-shirts, as well as a small portion of sexually explicit, non-obscene material, commonly referred to as ‘adult material’ At that time, the term ‘Adult Store’ was not part of the Township Ordinance. Instead, the Township Ordinance contained the term ‘Adult Bookstore or Adult Video Store,” the suit says.
“A commercial establishment which, as one of its principal business purposes, offers for sale or rental for any form of consideration one or more of the following: 1) Books, magazines, periodicals or other printed matter or photographs, films, motion picture, videocassettes or video reproductions, slides or other visual representations which depict or describe specific sexual activities or specified anatomical areas. 2) Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities.”
“Because the term ‘principal business purpose’ was vague, and a zoning officer’s “standardless interpretation of that vague term could wrongly lead to designation of the Proposed Store as an ‘Adult Bookstore or Adult Video Store,’ which would then trigger application of the onerous regulations for ‘Sexually Oriented Businesses’ to the proposed store, Plaintiff sought clarity from the Township as to its interpretation and application of that vague Ordinance, specifically, what constituted ‘principal.”
What followed was a year-and-a-half-long application and appeal situation, resulting in the following:
“On April 15, 2021, the Township modified the Township Ordinance to remove the term at issue concerning plaintiff’s applications and appeal – ‘Adult Bookstore or Adult Video Store’ – which contained the term ‘principal business purpose’ – and replaced that term with the new definition of ‘Adult Store’ – which triggered regulation by sale of one book or periodical with one picture depicting sexual activity or anatomical parts. The new definition of ‘Adult Store’ is even more problematic from a constitutional perspective than the original term ‘Adult Bookstore or Adult Video Store,” the suit states.
“Based on the plain text of the definition of ‘Adult Store,’ a business can trigger the onerous regulations for ‘Sexually Oriented Businesses’ upon carrying, selling, or displaying as little as ‘one or more’ items that ‘depict or describe specified sexual activities or specified anatomical areas,’ in other words, a medical book or non-medical book or magazine containing one picture of any of the prohibited depictions…or upon carrying, selling or displaying ‘one or more…instruments, devices or paraphernalia which as designed for use in connection with specified sexual activities,’ such as condoms or lubrications.”
“Consequently, under the new definition of ‘Adult Store,’ carrying, selling or displaying just ‘one or more’ of the items discussed above, commonly referred to as ‘sexually explicit non-obscene material,’ or ‘adult material,’ triggers the onerous regulations for ‘Sexually Oriented Businesses,’ whereas, previously, under the definition of ‘Adult Bookstore or Adult Video Store,’ a retailer would not be ensnared in the onerous regulations for ‘Sexually Oriented Businesses’ unless the retailer engaged in carrying, selling or displaying ‘adult material’ as one of its ‘principal business purposes.”
The suit argues the defendants’ qualifiers would also apply to other businesses, such as “mainstream bookstores, mainstream video stores, grocery stores, big box stores, and pharmacies, all of which sell ‘adult material,’ or such items as textbooks, books, DVDs and magazines that contain the subject depictions,” yet are not subject to the same “onerous” regulations.
“Consequently, plaintiff has suffered a content-based violation of the First Amendment at the hands of defendants. Plaintiff has been unable to exercise its First Amendment rights. Plaintiff has been subjected to a deprivation of its rights under the Equal Protection Clause of the Fourteenth Amendment. Each day that the new definition of the term ‘Adult Store’ remains in effect, plaintiff is deprived of its First and Fourteenth Amendment rights,” the suit adds.
“Additionally, plaintiff has signed a 10-year commercial lease, with options for renewal and options to lease additional space, but has been unable to commence operations as fully envisioned as the Proposed Store. As a result, plaintiff has suffered economic harm and continues to suffer ongoing economic harm each day that the new definition of ‘Adult Store’ remains in effect.”
For counts of violating the First Amendment and Fourteenth Amendments to the U.S. Constitution, the plaintiff is seeking the following relief:
• Finding and declaring that the Township Ordinance’s definition of “Adult Store” impermissibly discriminates on the basis of protected expression in violation of the First and Fourteenth Amendments;
• Finding and declaring that the definition of “Adult Store” is unconstitutional on its face and as applied to plaintiff under the First and Fourteenth Amendments to the U.S. Constitution;
• Finding and declaring that defendants targeted plaintiff for special treatment on the basis of plaintiff’s protected expression in violation of the First and Fourteenth Amendments;
• Enjoining defendants and their employees, agents, and representatives, as well as all persons acting for or on their behalf, from enforcing the definition of “Adult Store” as a trigger to regulation as a “Sexually Oriented Business” against plaintiff or its interests;
• Awarding plaintiff monetary damages against defendants for lost profits, loss of good will, remodeling costs, maintenance costs, and deprivation of constitutional rights;
• Awarding plaintiff its attorney fees and costs under 42 U.S.C. Section 1988; and
• Awarding such further and additional relief that the Court deems just and proper.
The plaintiff is represented by Pamela Tobin of Kaplin Stewart, in Philadelphia.
The defendants have not yet secured legal counsel.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-02303
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com